This is a motion under r 49.19 of the Uniform Civil Procedure Rules 2005 to review a decision of the Registrar on 30 January 2015 not to arrange a conciliation conference between the parties or their representatives under s 34 of the Land and Environment Court Act 1979. Instead the Registrar gave routine pre-hearing orders and fixed the proceedings for final hearing on 26-27 March 2015.
The applicant's notice of motion filed on 3 February 2015 seeks orders that the s 34 decision and the orders made on 30 January be set aside, that the hearing dates of 26 and 27 March be vacated, and that the parties approach the Registrar forthwith for the listing of the matter for a conciliation conference pursuant to s 34.
The proceedings are an appeal on the merits in Class 1 of the Court's jurisdiction against refusal by the respondent, Hurstville City Council, of a development application for demolition of an existing dwelling and construction of a new multi-dwelling development comprising four dwellings, subdivision and ancillary works.
The principles governing the exercise of the power of the Court to review the Registrar's decision were stated in Groeneveld v Wollongong City Council [2009] NSWLEC 149, (2009) 168 LGERA 260 at [12]-13] per Preston CJ of LEC:
[12] What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights. In Tomko v Palasty (No 2) at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions:
8. In the case of a decision on practice of procedure, this will normally require at least demonstration of an error of law, or a House v R error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.
9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.
[13] Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)].
These principles were applied in Sky Design and Concepts Pty Ltd v Pittwater Council (No 4) [2009] NSWLEC 129 at [38]; Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44; and Parcell v Leichhardt Council [2012] NSWLEC 77.
Section 34 of the Land and Environment Court Act was introduced against a background of lack of commitment and good faith by parties to the conciliation process, particularly local government authorities, in failing to duly authorise their representatives to be able to reach agreement at the conciliation conference, thus undermining the utility of the conciliation process. Section 34(1) empowers the Court to arrange a conciliation conference between the parties or their representatives even without their consent. In practice, s 34 conciliation conferences are routine in, and have proved to be highly successful in resolving, development appeals. The dispute resolution model in s 34 is a hybrid process involving, first, consultation, and then if the parties agree, adjudication. Section 34 relevantly provides:
34 Conciliation conferences
(1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court:
(a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and
(b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference.
(1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference.
(2) A conciliation conference is to be presided over by a single Commissioner.
(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner:
(a) must dispose of the proceedings in accordance with the decision, and
(b) must set out in writing the terms of the decision.
(4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and:
(a) unless the parties consent under paragraph (b), must make a written report to the Court:
(i) stating that no such agreement has been reached and that the conciliation conference has been terminated, and
(ii) setting out what in the Commissioner's view are the issues in dispute between the parties, or
(b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings:
(i) following a hearing, whether held forthwith or later, or
(ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference.
…
The Court's Practice Note - Class 1 Development Appeals at [13]-[14] creates a presumption in favour of fixing a s 34 conciliation conference unless the parties satisfy the Court that there is a good reason not to do so:
13. The parties are to inform the Court if there is any reason for the proceedings not to be fixed for a preliminary conference under s 34 of the Land and Environment Court Act 1979. If proceedings are fixed for a preliminary conference, then the parties may request that the usual directions in Pt A of Schedule D be made, with the balance of the usual directions to be made at a second directions hearing.
14. If the parties do not satisfy the Court that there is a good reason the proceedings should not be fixed for a preliminary conference under s 34 of the Land and Environment Court Act 1979, then, in the ordinary course, the proceedings will be fixed for a preliminary conference as follows: (a) for short matters, before the Duty Commissioner on the next available Friday; or (b) for other matters, within 14 days, subject to the availability of the Court.
In the present case, Council submits, as I am told that it submitted to the Registrar, that there are three reasons why no s 34 conciliation conference should be ordered. The Council's first reason, as articulated in affidavit evidence before me, is that:
Council has not given any staff authority to enter into a binding agreement on behalf of the Council at or following any conciliation conference under s 34 of the Land and Environment Court Act 1979. In that regard Council staff will not have the necessary authority to participate in good faith at any conciliation conference.
(emphasis added)
I observe that this is a blanket position adopted by Hurstville Council in all cases in this Court. It is an insufficient reason not to order a s 34 conference. Section 34 was enacted against the background of a culture, that s 34 was intended to defeat, by local councils that they would not authorise representatives at conciliation conferences to enter into agreements. The legislature gave the Court a coercive power in s 34(1) to order them to conciliate anyway, whereupon they became subject to the legislative command in s 34(2) to participate in good faith. The blanket position adopted by Hurstville Council is apparently founded upon jurisprudence that the obligation to participate in good faith includes an obligation that the person representing a party at a s 34 conference must have authority to bind that party by any action taken or position agreed at the conference: Preston CJ of LEC "Conciliation in the Land and Environment Court of NSW: History, Nature and Benefits" (3 August 2007, available on the Court website); ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22 at [13] per Pain J quoting that paper; and Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at [34] per Craig J. That is strongly desirable and usual. However, in my opinion, it is alternatively sufficient if a party's representative at a s 34 conference has authority to enter into a legally non-binding agreement as to the terms of a decision in the proceedings that the representative thinks may be acceptable to that party. This may require any such legally non-binding agreement to be submitted by the representative to that party for the latter's ratification; and this may require an adjournment of the s 34 conciliation conference. In the present case, the Council only declines to give its representative authority to enter into a "binding" agreement and that is no impediment to ordering a s 34 conference. Thus, the first reason advanced by the Council falls away.
The second reason advanced by the Council for not ordering a s 34 conference is that the proposed development does not meet a development standard concerning minimum lot size to such a substantial degree that the matter is not suitable for conciliation. I do not think that this is a sufficient reason not to order a s 34 conciliation conference. The Council's Statement of Facts and Contentions filed on 30 January 2015 identifies six reasons why the development application should be refused, only one of which concerns the minimum lot size for multi-dwelling housing. There is therefore scope for agreement or narrowing of issues in relation to the other five reasons. As for the minimum lot size, the Hurstville Local Environmental Plan 2012 requires a minimum lot size of 500m2 for each dwelling, and the applicant's proposal for a development containing four dwellings halves that requirement. The applicant applied for a review under s 82A of the Environmental Planning and Assessment Act 1979 from the Council and submitted amended plans for a multi-unit housing development containing three dwellings with lot sizes which still fall well short of the minimum lot requirement, which Council refused. There is, however, provision in cl 4.6 of that Plan for a development consent to be granted for development even though the development would contravene a development standard imposed by it in certain circumstances. The applicant wishes to negotiate with the Council at a s 34 conference as to whether a variation of the proposed development might be favourably considered by the Council under an exception in cl 4.6. That is not unreasonable. I am not satisfied that the Council's second reason for proposing that there should be no s 34 conference is sufficient.
The Council's third reason for submitting that there should be no s 34 conference is that the listing of the matter for conciliation would add to the time involved in determination of the matter generally as the agreed dates between the parties for a conciliation conference or hearing would be in late March anyway. The applicant's evidence now is that the applicant, and its legal representatives and consultants, are available to attend a conciliation conference on February 11, 13, 18, 19, 20, 23, 25, 26 and on March 2, 6, 9, 18, 19, 20, 23, 24, 25 and 31, 2015. I have consulted with the Chief Judge who can make a commissioner available for a one day s 34 conference in the weeks commencing 16 February, commencing 23 February or commencing 16 March. The parties would be required to take a date in one of those weeks unless another date convenient to the Court and the parties becomes available. Accordingly, the third reason submitted by the Council falls away.
In the result, I am not satisfied that there is sufficient reason to not order a s 34 conference. I have reached this conclusion with the benefit of evidence and submissions that were more comprehensive than those presented to the Registrar.
I do not propose to disturb the final hearing dates fixed by the Registrar nor the related timetable.
The orders of the Court are that:
1. The decision of the Registrar on 30 January 2015 not to arrange a conciliation conference under s 30(4) of the Land and Environment Court Act 1979 is set aside.
2. The parties are to approach the Registrar by tomorrow for the listing of the matter for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 on one day in the week commencing 16 February 2015, commencing 23 February 2015 or commencing 16 March 2015, or on such other date as the Registrar may determine.
[3]
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Decision last updated: 12 February 2015